The opinion of the Court was drawn up by
Shepley J.The tenant can prevail only by proving such a disseizin committed either by Blanchard or Stinson as would prevent the demandant from acquiring title.
The report states, that the premises with other adjoining lands were surveyed in August or September, 1818, and that “ it was proved, that at the time of said survey and just previous to it Blanchard said he disclaimed every part below high-water mark; *221and sometime afterward and after the trial he said, he had no title to it, and could not therefore maintain a prosecution against Mr. Gardiner for flowing it.” This being after he had released his interest to Stinson, the rights of the latter cannot be affected by it; but it effectually put an end to all pretence of claim on his own part; and any possession by him before that time must be regarded as existing in subordination to the legal title.
The report further states, that Stinson on the 10th of November, 1823, by deed of that date purchased of the demandant a tract of land, which had been included in his deed from Blanchard, and that it was “ proved that Stinson just before taking said deed, said that he would also purchase the intervale or bog, being the premises now demanded, if Mr. Vaughan would agree to get the water off of it, or compel Mr. Gardiner to do so, for that Blanchard had disclaimed it, and he, Stinson, had no title of his own to it; and a few days after he received said deed he said, that Mr. Vaughan, who acted for demandant, would not so agree, and he had not bought it, and that demandant might now take the land, and do what he had a mind to with it.” Here is a full disclaimer and abandonment of all claim by possession or otherwise, and it destroys all right to insist upon an adverse possession prior to that time. And it becomes the duty of the Court upon such proof to decide, that no disseizin had been committed prior to the 20th of February, 1823, when the demandant acquired his title.
As those, under whose title the tenant claims, have deprived themselves of the right to withstand in this mode the title of the demandant, it is not necessary to enter upon a consideration of the requests for instruction, or of the instructions which were given.
Judgment on the verdict.